Valentine v. City of New York

Milonas, J. (dissenting).

I would affirm the judgment awarding damages for personal injuries suffered by plaintiff.

The jury, following a five-day trial, rendered a unanimous verdict in favor of plaintiff and against the defen *389 dant, the City of New York. The majority now proposes to substitute its judgment for that of the jury, contending that, as a matter of law, insufficient time had passed between the end of the snowstorm and the accident to charge the city with responsibility for its failure to clear the sidewalk. It is acknowledged that “[t]here is no formula for determining liability on the basis of any ratio between the number of inches of snowfall and the time elapsed before the happening of the accident” (Yonki v City of New York, 276 App Div 407 , 410, app dsmd 303 NY 852 ). However, the majority has determined that in view of the severity of the storm and the extensiveness of the required snow and ice removal operations, the city cannot be deemed accountable since the shortest time period for which a municipality has been held liable in such a situation is 44 hours, and what is involved here is only a period of SOVé hours after the cessation of precipitation. It would thus appear that the crucial, and undetermined, time span lies somewhere between 30V4 hours and 44 hours.

The jury, having heard all the evidence, found the city remiss in the performance of its duty to maintain the sidewalks in a safe condition for pedestrians to use. How much time is necessary for the city to be reasonably expected to take affirmative action on behalf of the public welfare is a question which, along with all the other factual circumstances surrounding the storm' and its aftermath, was properly left to the jury’s determination.

Although the opposing parties strongly disagreed as to the severity of the weather conditions, there certainly was more than sufficient basis in the evidence to justify the jury’s verdict. The jury could reasonably conclude that although the storm began on December 16, 1973, the streets were untouched by the city until December 19, and that the precipitation was not extensive, finally amounting to only 2.8 inches of snow and ice, some of which had already evaporated by the time of the accident. The evidence is also adequate to demonstrate that the plaintiff fell on a path worn on snow and ice by pedestrian traffic, which was described as being lumpy and bumpy and dark like dirt. Despite the supposed difficulty by the city in removing the accumulation, some abutting landowners, includ *390 ing the adjacent owner, had already cleared the area in front of their houses. Further, the jury could reasonably find that the storm had actually effectively ended some 40 hours before the accident and what followed were merely traces of precipitation.

As the United States Supreme Court declared in Tennant v Peoria & Pekin Union Ry. Co. ( 321 US 29, 35 ): “It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable * * * That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”

Regardless of the fact that the jury decided to the contrary, the majority has determined that the city’s recitation of the facts is more persuasive than that of the plaintiff. Yet, it is incumbent upon us to view the evidence in a manner most favorable to the plaintiff, since it was she who prevailed at trial (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312, n 1 ). The jury has made an appropriate and supportable finding in this case, and we should not disturb it.

Ross, Carro and Lupiano, JJ., concur with Sullivan, J. P.; Milonas, J., dissents in an opinion.

Judgment, Supreme Court, Bronx County, entered on December 19,1980, reversed, on the law, without costs and without disbursements, the judgment vacated and the complaint dismissed.